5 years ago, Yecheskel “Charlie” Schwab commenced massive litigation with the hopes of taking down
Shlomie Klein, Herschel Herskowitz, and Abraham Sharaby, Lakewood residents who simply dared to voice the same concerns that everyone else thinks about Lakewood.This 5 year long battle has now come to a crumbling end, with the New Jersey Appellate Division granting a resounding victory to all the defendants.
The basis for the lawsuit was the publication of articles on Jleaks exposing corrupt activities involving Schwab, the founder and sole member of DataMap Intelligence, LLC, and Lakewood Township Deputy Mayor Menashe Miller.
The litigation formally commenced and served on November 6, 2018 - a day after the general elections - when Schwab, filed a Complaint against Klein, Herskowitz, Sharaby, and Joyce Blay.
The Complaint sought monetary and punitive damages, and injunctive relief for the removal of the stories.
As the case proceeded, Schwab attempted to depose Klein. When he was finally successful, Klein denied any involvement with the Jleaks articles. In addition, to protect his journalistic sources and newsgathering process, Klein asserted journalistic privileges. He invoked the New Jersey shield law, which permits journalists to protect the identities of their sources and other information obtained in the newsgathering process.
Schwab then redeposed Klein. After Klein again asserted journalistic privileges, Schwab's attorney sought to hold him in contempt.
Up until this point, Klein was representing himself pro se. Due to the pending motion to hold him in contempt, he reached out to the Reporters Committee for Freedom of the Press for assistance.
At that point, Pashman Stein Walder Hayden, P.C., attorneys for the Reporters Committee for Freedom of the Press - which represents BuzzFeed, International Documentary Assn., The Media Institute, MPA - The Association of Magazine Media, National Press Photographers Association, New York Public Radio, Radio Television Digital News Association, Society of Environmental Journalists, Society of Professional Journalists, and Tully Center for Free Speech - joined the matter as Amicus Curiae, friend of the court, supporting Mr. Klein's journalistic privileges and urging the court to sustain his invokation of the New Jersey shield law.
At the same time, the Reporters Committee for Freedom of the Press reached out to Attorney Joseph Slaughter Esq. of Ballard Spahr LLP - a famous First Amendment rights attorney - to represent Klein pro bono.
Originally, Mr. Slaughter intended for his appearance in the matter to be limited to defending Klein against the motion for contempt.
After the judge ruled in favor of Mr. Slaughter, Klein's wife and kids were harassed and terrorized; on numerous occasions hundreds of teenagers showed up at his home to riot, do graffiti, break windows, and egg his home.
See videos here.
After seeing all the terroristic harassment going on, Mr. Slaughter jumped in and took it upon himself to help Klein get the entire litigation dismissed. Accordingly, he filed a motion for summary judgement.
Not only did Klein benefit from the filing of this motion for summary judgement, all of the defendants benefited.
Ultimately, on October 5, 2021, after recognizing the terroristic harassment going on against Klein's family, Judge James Den Uyl granted summary judgment in favor of Klein and Herskowitz.
Subsequently, on November 22, 2021, Judge Den Uyl likewise granted summary judgement in favor of Sharaby.
The story would have been over at that point.
However, on January 4, 2022, Schwab charged on with a Notice of Appeal. This is the initial notice that he intended to appeal Judge Den Uyl's rulings to the New Jersey Appellate Division.
This appeal process was quite lengthy - nearly two years.
However, from oral arguments to decision day took less than 6 days!
Judges Haas and Puglisi heard oral arguments on the appeal last Tuesday, December 6, 2023.
In a written ruling just released the judges agreed with the trial court's decision to dismiss the entire case!
The ruling highlights that Schwab never proved that any of the articles were false, and he never proved any monetary damages.
The judges concluded:
1) Even according to Schwab's claim that the stories were not true (which Schwab was not able to prove), Schwab was not able to prove that Klein wrote the story
Klein stated at his deposition that he was not the publisher of the articles or the websites. Moreover, Klein provided a sworn statement that he did not author or publish the articles. Plaintiffs did not provide any evidence to the contrary.
Schwab alleged that news pieces were posted with information that only Klein had access to and the motivation to disseminate, and that this circumstantial evidence was sufficient to demonstrate a material issue of fact as to whether Klein was the person responsible for publishing the articles on the websites. Both of these arguments lack merit.
"A defamatory statement is published when it is communicated, either intentionally or negligently, to one other than the person defamed." Abella v. Barringer Res.
After reviewing the record in a light most favorable to plaintiffs, we conclude that plaintiffs failed to satisfy their burden of proving with clear and convincing evidence that Klein published or authored the alleged defamatory statements.
In addition, plaintiffs made no attempt to serve a subpoena on the domain registrars or hosts of the websites.
The trial court also granted summary judgment to Sharaby for the same reasons it granted it to Klein, finding that plaintiffs had not established the elements of defamation by clear and convincing evidence that Sharaby wrote the stories on jleaks.
Plaintiffs argued that they presented different evidence concerning Sharaby and his alleged relationship to jleaks, together with evidence that Sharaby targeted plaintiff in various ways over the years.
After reviewing this evidence in the light most favorable to plaintiffs, we conclude that, like the meager evidence plaintiffs submitted regarding Klein, it failed to demonstrate that Sharaby published the articles on the websites. The evidence that plaintiffs allege tied Sharaby to jleaks was the email from Globus, seeking permission to republish a jleaks article. However, Globus stated she never asked Sharaby to identify the publisher of jleaks and she had no knowledge of that information. Sharaby stated he was not the publisher of jleaks and, as noted, plaintiffs never subpoenaed information about the publisher of that website.
Next, plaintiffs argue that the trial court erred by considering Klein's November 2, 2020 statement that he was not the publisher of either of the websites. They claim that this statement contradicted Klein's deposition testimony because, at deposition, Klein invoked the privilege afforded to reporters under the New Jersey Shield Law, to decline to answer a number of the questions posed. Plaintiff's argument on this point lacks merit because Klein stated at his deposition that he did not have access to the "back end" of jleaks and did not publish or author the articles. Thus, his testimony was consistent with his November 2, 2020 written statement.
Plaintiffs also argued that they could not procure the necessary evidence to establish their claims because defendants spoliated evidence by changing their cell phone numbers and not preserving electronic communications after the litigation commenced. However, Klein and Sharaby were protected by the Shield Law because they were both involved with the news media. In addition, plaintiffs had other means to obtain proof as to the identity of the publisher of jleaks. However, they did not even subpoena the website owner. Thus, plaintiffs did not prove that any of defendants' actions disrupted their case. Johnson v. Benjamin Moore & Co.
2) Even according to Schwab's claim that the stories were not true and Klein wrote the stories (which Schwab was not able to prove), Schwab was not able to prove malice because he admitted he already that he knew there were rumors
When it comes to defamation, New Jersey courts give "greater protection to speech involving . . . the public interest because of the important role that uninhibited and robust debate plays in our democratic society. To establish defamation when the public interest is at stake, "the plaintiff must prove actual malice, showing that the speaker made a false and defamatory statement either knowing it was false or in reckless disregard of the truth." Senna v. Florimont.
The actual malice standard is subjective and involves an inquiry into the defendant's state of mind. "To find actual malice, the factfinder must determine that the defendant in fact entertained serious doubts about the truth of the statement or that defendant had a subjective awareness of the story's probable falsity." Costello v. Ocean Cnty. Observer.
In granting Klein's motion for summary judgment, the trial court applied the stricter actual malice defamation standard because defendants' alleged defamatory statements implicated matters of legitimate public concern regarding corrupt business dealings between the township and plaintiff. Thus, according to the court, all elements of the defamation claim had to be proved by clear and convincing evidence.
Plaintiffs characterized the evidence that Sharaby targeted him over the years as Sharaby "disseminating false information about his religious practices." However, the citations to the record that plaintiffs provide all involve the rabbinical court proceeding where the court chastised plaintiff for suing for defamation in a civil court, instead of in a rabbinical court. On November 25, 2018, a rabbinical court issued a "siruv," excommunicating Schwab because he litigated the defamation matter in a secular court instead of a rabbinical court, a violation of Jewish law. This was in keeping with the laws of the rabbinical court. This incident occurred in November 2018, after plaintiffs had already filed their complaint. Thus, plaintiffs did not establish that Sharaby had targeted him.
Herskowitz admitted that he published the statements that were the subject of plaintiffs' complaint against him. However, there was no evidence of malice.
The court noted that Herskowitz believed his comment was true and only named plaintiff once in a post. Therefore, the court found that plaintiffs failed to establish actual malice.
Moreover, a "failure to investigate will not alone support" recklessness. As to demonstrating there was actual malice by circumstantial evidence, the United States Supreme Court has identified three examples where that may occur: (1) where there is evidence that the defendant "fabricated" the story; (2) where the evidence suggests the allegedly defamatory statements are "so inherently improbable that only a reckless man would have put them in circulation[;]" or (3) where the evidence demonstrates that "there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." Saint Amant v. Thompson.
Applying these standards, we conclude that plaintiffs did not establish actual malice.
3) Even according to Schwab's claim that the stories were not true, and Klein wrote the stories, and there was malice, (which Schwab was not able to prove), Schwab did not prove any monetary damages
The complaint also alleged that Schwab suffered damages, including reputational harm and disrupted relationships. He believed that these business losses were a result of the negative articles and tweets about him.
On March 3, 2020, the trial court issued a case management order instructing plaintiffs to serve all defendants with expert reports to establish and quantify the damages they claimed. Plaintiffs did not comply with the order.
Plaintiffs argue that they were not required to submit expert reports in order to establish the damages they claimed. However, this argument ignores the fact that the trial court specifically ordered plaintiffs to provide such reports in the March 3, 2020 case management order. Plaintiffs were therefore required to comply with this directive. Thus, even though in some cases it might not have been necessary to submit an expert report to establish damages, plaintiffs here defied a court order.
Plaintiffs alleged that they would have been able to establish their damages at trial by calling various members of the Lakewood Township community as witnesses. However, they did not present any affidavits from any of these potential witnesses in opposition to defendants' motions for summary judgment. In addition, plaintiffs did not submit affidavits from "any members of the Lakewood Township community or municipal government to establish a claim for compensatory and actual damages."
Therefore, the trial court properly ruled that plaintiffs did not establish their claim for damages.
The court dismissed plaintiffs' remaining tort claims for conspiracy, aiding and abetting, and false light, because they were all premised on the underlying defamation action.
Schwab was represented by Attorneys Willard C. Shih and Pierre Chwang, Esq. of Wilentz, Goldman & Spitzer P.A.
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